WASHINGTON - The Justice Department's antitrust division has been busy lately. Just ask Bill Gates.
But Deputy Assistant Attorney General Steven C. Sunshine, who directs all merger reviews, said the rapidly consolidating banking industry should not worry that department will stand in its way.
"I don't expect antitrust to be a defining force in the marketplace," he said.
That stance might surprise some bankers, who have watched the Justice Department take on the mighty Microsoft, derailing the software giant's bid to acquire Intuit, the maker of the popular Quicken financial planning program.
Bankers also have heard countless tales of government-ordered branch sales or other divestitures to dilute a merger's anti-competitive impact.
Yet Mr. Sunshine said the financial services industry is one of the more vibrant and competitive businesses around.
"There are just very few areas (in banking) where there is the concentration of market power that tends to attract and keep our interest," he said.
"We may look at a merger when there are one or two competitors in the market," he added. "But we are almost always able to resolve those."
Statistics support Mr. Sunshine's claim. Of the 2,300 bank mergers Justice examined in 1994, it required only four banks to restructure their deals.
Still, some areas of the business - especially small-business lending - do capture the department's interest.
"That seems to be the most common market problem," Mr. Sunshine said.
Small businesses can't access the financial markets for capital, so they rely on their local banks for credit, he said. Any deal that threatens competition in this pivotal area will be scrutinized, Mr. Sunshine vowed.
Justice also is keenly interested in computer banking.
The department did not like the Microsoft-Intuit marriage because one company would be left controlling the pipeline that connects consumers to their banks, Mr. Sunshine said.
"Even if there are 13,000 banks competing, if there is only one pipe, that is not going to be a competitive market," Mr. Sunshine said. "What we want to do is make sure there are a lot of pipes."
That doesn't mean banks can't join forces to create their own computer banking services, he said.
"You wouldn't expect 13,000 banks to offer their own product," he said. "You would expect there to be a fair amount of teamwork and consolidation."
ATM networks are another antitrust front at Justice.
Mr. Sunshine said the department is not worried about network expansion, but it is concerned when ATM systems leverage their monopoly to force banks to purchase other services or extract excessive fees for processing work.
That was the basis for the government's 1994 suit against Electronic Payment Services Inc., one of the first antitrust cases the Clinton administration pursued.
EPS settled that complaint last year, agreeing to allow members to offer competitor's ATM services. The deal reduced EPS's leverage over individual banks, satisfying Justice's concerns.
The higher-tech areas of banking are under scrutiny because the government wants to foster competition in these evolving markets. But mergers involving more traditional services don't receive much review, Mr. Sunshine said. The department, for example, has never challenged a deal on home mortgage financing.
"There people do turn to mortgage companies and nonbank providers," he said.
Corporate business lending doesn't set off warning bells either. "Larger corporations can go to money-center banks," he said. "They can go to brokerage houses. They have lots of alternatives."
Though bankers once had to fear an antitrust review, especially during the 1970s when banks were acquiring direct competitors, they can rest easier today, agreed Thomas Vartanian, a partner at Fried, Frank, Harris, Shriver & Jacobson.
"What was once a very large and vibrant special industries group at Justice hasn't been around for a while," said Mr. Vartanian, the former antitrust counsel at the Comptroller's office. "So it has lost focus and it has lost people who understand the business of banking."
It also is about to lose Mr. Sunshine, who after two years of overseeing mergers plans to return to private practice at the Washington office of the Sherman & Sterling law firm.
Lawrence Fullerton, the current chief of staff to Deputy Attorney General Anne Binghamton, will replace Mr. Sunshine.
The change in personnel, however, won't affect Justice's policy, Mr. Sunshine said. "At least that is what they tell me while I am still here," he said with a chuckle.
Continuation of the current policy is not necessarily good news, some banking attorneys contend.
Mike Greenspan, a partner at Thompson & Mitchell, said he has represented several banks who lost the chance to buy branches because of the mere mention of antitrust problems.
"They have been told by the sellers, unless you can assure me that there are no anticompetitive concerns, don't bid at all," he said.
Also, banks often agree to sell branches ahead of time to avoid Justice's gaze, he said.
"While they only intervened in four cases, that doesn't take into account the deals that aren't made because of the antitrust problems," Mr. Greenspan said.
Still, Mr. Sunshine sticks with his story, noting that Justice laid down merger rules in the mid-1980s and has essentially stuck with them ever since.
"People know exactly where we stand," he said. "So, if people want to structure their transactions to avoid our scrutiny, they know how."
To measure concentration, Justice takes each bank's market share and squares it. If the resulting number exceeds 1,800 or rises more than 200 points, then the department usually considers the merger anticompetitive and orders a divestiture.
The department includes thrifts when they are active small-business lenders. "If they are not doing commercial lending, we don't have them in the market at all," he said.
